In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00334-CR ________________
RICHARD BRANDON CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the County Court at Law No. 2 Orange County, Texas Trial Cause No. E114140 ________________________________________________________________________
MEMORANDUM OPINION
Appellant Richard Brandon Castillo (“Appellant” or “Castillo”) appeals his
conviction for driving while intoxicated, a Class B misdemeanor punishable by (1)
a fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days;
or (3) both such fine and confinement. See Tex. Penal Code Ann. §§ 12.22, 49.04(a).
In six issues, Castillo complains that the trial court erroneously denied his motion to
suppress evidence, admitted testimony based on speculation, erroneously denied his
motion for mistrial, and erroneously failed to instruct the jury pursuant to article
1 38.23 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art.
38.23.
We affirm the trial court’s judgment.
BACKGROUND
Castillo was charged by information stating that “on or about October 31,
2021,” [he]
did then and there operate a motor vehicle in a public place when said RICHARD BRANDON CASTILLO was intoxicated
and it is further presented in and to said Court that at the time of performing an analysis of a specimen of the defendant’s blood, the analysis showed an alcohol concentration level of 0.15 or more[.]
Castillo moved to suppress all the evidence of his intoxication, contending
that it was the fruit of an illegal detention. The trial court denied the motion and
allowed presentation of the challenged evidence.
Guilt and punishment were tried to a jury. The jury did not find Castillo guilty
of the offense charged, driving while intoxicated with a blood alcohol concentration
of 0.15 or more, but did convict him of the lesser included offense of driving while
intoxicated. Pursuant to the jury’s punishment verdict, the trial court sentenced
Castillo to sixty days in the Orange County jail and a $2,000 fine, plus a statutory
traffic fine of $6,000 and court costs of $450. The trial court suspended Castillo’s
sentence and placed him on community supervision for two years.
2 We summarize below the relevant evidence presented during the hearing on
Castillo’s Motion to Suppress and at trial.
Charlene Wappler’s Testimony
Charlene Wappler testified that on October 31, 2021, she was driving from a
relative’s home in Mont Belvieu to her own home in Bridge City. As Wappler drove,
she saw two white trucks that were “driving crazy[]” and “cutting in and out cutting
off people.” Wappler was concerned by the trucks’ unsafe operation so she watched
them as they continued to vary their speed and “weave[] in and out” of traffic and
“pass[] unsafely.” After Wappler and the two trucks took the Winnie exit, Wappler
was able to get close to them, and she saw that “the driver had his hand on the
steering wheel and a gun in the other one and he shot off two rounds” out of the
driver’s side window toward an empty field. Seeing the gun concerned Wappler
enough that she called 9-1-1 to report the incident. Wappler initially spoke with
Chambers County dispatch, but as she drove, she was transferred to other
departments. Wappler provided the truck’s license plate and described what she saw
as it happened, including the fact that the truck “lost control and he spun out into the
median” as the truck took a sharp turn “at a very high rate of speed[.]” Although
Wappler at one point thought that the incident was over, it was not, and the driver of
the truck “gassed it, fishtailed and got out of the median and proceeded down 73
3 towards Bridge City.” Wappler also saw the truck force another vehicle past the fog
line, but no collision occurred.
As Wappler reached Bridge City, she saw a Bridge City police vehicle stop
the truck, which pulled into a convenience store/gas station. Although Wappler also
pulled into the gas station, she did not speak to law enforcement officers at that time
but instead provided a statement the following day.
Sergeant Adam Granger’s Testimony
Bridge City Police Department Sergeant Adam Granger testified at both
Castillo’s suppression hearing and at trial. At trial, Granger testified that dispatch
notified him of a “reckless driver” who “had been firing a firearm out of the vehicle
and going at a high rate of speed.” Wappler was the caller reporting the incident.
Dispatch advised that the vehicle was entering the city from the Veterans Bridge
area, and when Granger saw the vehicle and verified the license plate number, he
stopped the vehicle.
When Castillo pulled into the gas station parking area, Granger told Castillo
to “come back to my vehicle,” and Castillo cooperated without stumbling or
swaying. Granger asked Castillo what had happened, and Castillo did not slur his
speech when he acknowledged “being stupid or not making good decisions” and
admitted “to discharging the firearm out of the vehicle.” After the officers retrieved
the gun from Castillo’s vehicle and ensured that it was not stolen, Granger continued
4 speaking with Castillo, and “started to notice there [were] some other things going
on with this call that [he] didn’t catch on to initially due to paying attention to the
firearm.” Specifically, Granger thought Castillo “was possibly intoxicated[]”
because Castillo admitted consuming alcohol and smelled of alcohol, and the mud
and grass on Castillo’s vehicle showed that Castillo had lost control of his vehicle.
In addition, Granger noted that “firing a firearm out of a vehicle, that’s not something
a sober reasonable person would do[.]” Granger, therefore, intended to perform a
standard field sobriety test on Castillo, but Castillo declined the test, stating that he
would fail the test due to equilibrium issues and a “bad knee.” Granger then arrested
Castillo for driving while intoxicated.
Since Castillo consented to having his blood drawn, Granger transported
Castillo to the Orange County jail infirmary, where nurse Kim Pearson drew
Castillo’s blood for alcohol testing. Granger described the infirmary, stating that “[i]t
appeared sanitary.” Granger watched the nurse draw Castillo’s blood, and when the
nurse handed the tube to Granger, he placed the sticker on it, initialed it, and placed
it back in the plastic container. After the blood tubes were placed in the box, the box
was sealed and placed in the outgoing mail to a laboratory for testing.
During cross-examination, Granger acknowledged that he completed
investigating the firearm incident and intended to allow Castillo to leave, but had not
5 told Castillo he was released; when Granger realized that he was dealing with a
possible D.W.I. matter and proceeded accordingly.
Lieutenant Amanda Seal’s Testimony
Lieutenant Amanda Seal testified that she is a registered nurse and a nursing
supervisor at the Orange County Jail. As a nursing supervisor, her duties include
supervising licensed vocational nurses, such as Kimberly Pearson, and overseeing
jail inmates and their care. Seal described Pearson as “a wonderful nurse[.]” Seal
outlined her professional education and experience, noting that she earned her
nursing degree at Lamar University in Orange, and worked at the jail since
September 2019. Seal testified the duties of the licensed vocational nurses include
not only providing inmate care but performing blood draws for D.W.I. cases.
According to Seal, although the jail infirmary is “pretty much in the center of the
jail[,]” and shares air circulation with the jail, jail personnel take blood draws in a
“clean environment” that is cleaned every time it is used. Seal could not, however,
verify that the area was properly cleaned or that Ms. Pearson properly performed
Castillo’s blood draw, since Seal was not present at the time.
Kevin Moyer’s Testimony
Kevin Moyer testified that he worked as a forensic scientist at the Houston
DPS Crime Laboratory. Moyer described his education, training, and experience,
and explained the process of analyzing blood. During the test procedure, Moyer
6 observed no signs that Castillo’s blood had been contaminated, and Moyer found no
problems with the procedure. According to Moyer, he followed the required
protocols to test Castillo’s blood, and “[t]he result in this case was 0.222 grams of
alcohol per 100 milliliters of blood.” To reach that blood alcohol concentration, a
person would have to have consumed eleven standard drinks at the time of the blood
draw.
Moyer acknowledged there had been a tube recall due to the absence of
preservatives that were supposed to have been inside the tubes, and he agreed it
“could cause problems” if the anticoagulant was present but the sodium fluoride was
lacking. Moyer was unsure, however, whether this case was affected by the recall.
Moyer also acknowledged that failing to refrigerate a blood sample could cause
problems, and that if a sample were contaminated with Candida albicans, that
contamination could, under the right conditions, cause the blood sample to produce
alcohol and would yield an inaccurate test result.
Moyer testified that he has received training regarding the effects of alcohol.
That training teaches that at a 0.222 blood alcohol level, a person “could be
staggering[,]” and “could be slurring their words.” In Moyer’s experience, however,
alcohol overuse does not always cause such behavior.
7 Jennifer Sisco’s Testimony
Castillo called Jennifer Sisco as an expert witness. Sisco described the proper
procedure for drawing blood to avoid contamination. Specifically, Sisco testified
that following proper procedure requires washing one’s hands and putting on gloves.
The technician drawing the blood would then palpate the area to find a vein and
would apply the tourniquet and cleanse the area with an alcohol-free cleanser to
avoid contaminating the blood sample. The area is then cleaned and dried before
drawing the blood. Once the needles are inserted into the tubes and the subject’s
arm, blood will automatically flow into the tube and will stop when the tube is full.
Since the tubes were “only three-fourths and two-thirds of the way full[,]” Sisco
assumed that the seals were not proper.
The tubes should be stored at temperatures between seventy and seventy-five
degrees, since heat can affect the preservative and the seal. After collecting the
subject’s blood, the tube must be slowly inverted eight to ten times to mix the
preservatives in the tube and then refrigerated “to preserve the integrity of the
specimen” and “to keep contamination growth down.” Sisco was concerned about
the maintenance history of the laboratory equipment used to test Castillo’s blood,
since the manufacturer had not maintained it since 2018.
Sisco viewed videos of the jail infirmary where Castillo’s blood was drawn,
and testified one video showed blood on the walls and garbage on the floor. Sisco
8 therefore did not consider the infirmary environment sanitary. Sisco did not believe
that Castillo’s test result was valid because the blood was not refrigerated and
because it cannot be determined that Granger and the nurse followed proper blood
draw procedures.
Digital Evidence
The State played for the jury the recordings of Wappler’s 9-1-1 call and
Granger’s body camera. Although Granger’s dash camera recording was admitted
without objection, the trial court admitted the recording of Wappler’s call over
Defendant’s objection that the exhibit did not include Wappler’s entire call. The
State played the body camera recording at the hearing on Castillo’s Motion to
Suppress, also.
Castillo’s Motion to Suppress
Castillo moved to suppress his arrest and the results of his blood alcohol test
on the grounds that law enforcement officers extended the traffic stop beyond the
valid reason for initially stopping him. Under Castillo’s argument, the officers at the
scene of the traffic stop concluded their investigation about the firearm, but then
unreasonably prolonged the stop, in violation of the Fourth Amendment, to assess
Castillo’s possible intoxication. Therefore, according to Castillo, everything
occurring after the officers determined that Castillo had not committed a firearms
9 violation was fruit of the poisonous tree and should be suppressed as a Fourth
Amendment violation.
The State argued that Granger was initially focusing on the gun, and that it
was not until the officers were about to allow Castillo to leave, but had not yet done
so, that Granger appreciated the evidence of Castillo’s possible intoxication.
The trial court viewed the issue thus: did the officers “unlawfully prolong the
detention? Did Officer Granger lack reasonable suspicion to question Mr. Castillo
about D.W.I. once the initial reason for the traffic stop had ended?” After reciting
the evidence of alcohol use and erratic driving, the court explained, “[n]ow, it seems
to me that it’s intertwined, because all during the questioning about the weapon,
there’s questioning about ‘Have you been drinking? I smell alcohol.’” The court then
found “that the officer did have reasonable suspicion to ask just a little bit more and
do a little more investigation once it was decided that they weren’t going to detain
Mr. Castillo for firing the firearm or having the firearm.” The Court accordingly
denied Castillo’s motion to suppress.
Castillo’s Motion for Mistrial
During the stop, Castillo admitted to having been arrested for possession of
drug paraphernalia nearly ten years previously. Later, Granger asked Castillo “as far
as being in trouble before, it was just for the marijuana, right[?]” The State agreed
to edit that admission from Granger’s body camera video before playing the video
10 for the jury. Due to a technical issue, the State inadvertently played the inadmissible
portion, and Castillo moved for a mistrial.
Although the trial court denied the motion for mistrial, it instructed the jury to
disregard Granger’s comment, stating:
Ladies and Gentlemen, we just heard an officer make a statement along the lines of “as far as being in trouble, it was just for the marijuana.” You’re instructed to disregard that statement by the officer and not to consider that statement in any way, shape, or form, especially’s [sic] when it comes to determining the guilt or innocence of Mr. Castillo for this offense of driving while intoxicated.
Castillo’s Requested Jury Instruction
Castillo requested the trial court to instruct the jury not to consider illegally
obtained evidence. See id. art. 38.23. The instructions Castillo sought read:
REQUESTED INSTRUCTIONS NO.1
I. 38.23 Illegally Obtained Evidence
You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop or detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officers have specific articulable facts, which taken together with rational inferences from those facts, lead them to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity. Now, bear in mind that if you find from the evidence that on the occasion in question, the defendant, Richard Brandon Castillo, had been released from the initial detention by the officers for the purpose of the stop, or have reasonable doubt thereof as to the legality of the extension of the stop, then such detainment of the accused would be illegal and, if you find the facts to be so, or if you have reasonable doubt thereof, you will disregard the testimony of the officers relative to their
11 detaining of the Defendant, and their conclusions drawn as a result thereof and you will not consider such evidence or any other evidence presented from any point in time after Defendant was stopped for any purpose whatsoever and you will find the Defendant Not Guilty.
Now, if you find that the officer showed a specific articulable fact that he did not have during his initial investigation prior to releasing the Defendant from the initial stop, then you may consider such evidence and give it whatever weight you decide and will continue to the next question.
REQUESTED INSTRUCTIONS NO. 2
You are instructed that in order for you to consider any testimony or evidence regarding the blood evidence presented, you must first determine beyond a reasonable doubt that the Statute of the State of Texas Code of Criminal Procedure, section 38.23 has been complied with. This Statute states that:
“No evidence obtained by an officer of other person in violation of any provisions of the Constitution of laws of the State of Texas, or of the Constitution of the laws of the United States of America, shall be admitted into evidence against the accused on the trial of any criminal case.”
If you believe, or have a reasonable doubt, that the evidence was obtained in violation of the provisions of this statute or any other under the Code of Criminal Procedure, based on testimony presented, you shall disregard any such evidence so obtained and f[i]nd the Defendant Not Guilty.
II. Blood Test Results
You are instructed, that in order to consider the blood test results, you must first determine beyond a reasonable doubt that the blood sample was not contaminated.
12 If you believe, or have a reasonable doubt thereof, as to the accuracy of the blood specimen results in this case due to contamination, you may not consider those results for any purpose whatsoever.
Now, if you find, by the testimony presented that blood specimen results were not contaminated and believe such results are accurate, you may consider those results.
III. Chain of Custody (Blood)
You are instructed that in order for you to consider the Blood Test results, you must first determine that the State proved beyond a reasonable doubt that:
1.) A proper chain of custody exists for the blood sample,
AND;
2.) That the blood tested was the same blood drawn from the Defendant.
If you have reasonable doubt as to whether or not the State met proved both elements above, then in this event, you shall disregard any such, evidence so obtained and find the defendant Not Guilty.
Now, if you find, beyond a reasonable doubt that the State has met both elements, you may consider such evidence and give to it whatever weight you decide. 1
The trial court denied Castillo’s request, stating “[w]hen I think of defenses, I
just think of Chapter 8 defenses.”
1 Castillo sought additional jury instructions that are not pertinent to this appeal. 13 STANDARD OF REVIEW AND ANALYSIS
Issues One and Two: The Scope and Duration of the Traffic Stop
In his first two issues, Castillo contends that the evidence of his intoxication
resulted from a Fourth Amendment violation. See U.S. CONST. amends. IV, XIV;
see also Tex. Const. art. I, § 9.2 More specifically, Castillo argues that although the
law enforcement officers properly stopped him to investigate a report of reckless
driving and gunshots, the officers unreasonably prolonged his detention when they
began investigating his possible D.W.I. offense. Therefore, Castillo argues, the
officers violated his Constitutional rights, rendering all evidence of his intoxication
illegally obtained and consequently inadmissible. Castillo argues the trial court erred
in denying his motion to suppress such evidence and further erred in admitting
evidence obtained through the alleged violation.
We apply a bifurcated standard to a trial court’s ruling on a motion to
suppress. See State v. Pettit, 713 S.W.3d 834, 839 (Tex. Crim. App. 2025). This
standard “gives almost total deference to the trial court’s determination of historical
facts that the record supports and considers de novo the application of the law to the
facts.” Id. We review a trial court’s ruling on the admission of evidence under an
2 Although Castillo asserts violations of both the Fourth Amendment and Article I, Section 9, he does not argue Article I, Section 9 affords broader protections, so we analyze this case under the Fourth Amendment. See Limon v. State, 340 S.W.3d 753, 757 n.15 (Tex. Crim. App. 2011). 14 abuse-of-discretion standard. See Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex.
Crim. App. 2021). We may not reverse the trial court’s ruling on either issue unless
such ruling was “arbitrary, unreasonable, or outside the zone of reasonable
disagreement.” Pettit, 713 S.W.3d at 839; see also Inthalangsy, 634 S.W.3d at 754.
The Fourth Amendment to the United States Constitution protects people
“against unreasonable searches and seizures[.]” U.S. CONST. amend. IV. As Castillo
has correctly noted, “a police stop exceeding the time needed to handle the matter
for which the stop was made violates the Constitution’s shield against unreasonable
seizures.” Rodriguez v. U.S., 575 U.S. 348, 350 (2015). Rodriguez cautions,
however, an officer may prolong a stop if he has “the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Id. at 355. In fact, United States v.
Pack, 612 F.3d 341 (5th Cir. 2010) addresses just such a situation. In Pack, a vehicle
was stopped for speeding, but when the driver and passenger responded
inconsistently to the officer’s questions, the officer suspected illicit activity and
requested a canine unit. Id. at 345–46. Although the canine unit took twenty-seven
minutes to arrive, the court upheld the legality of the search, which yielded over
seventeen pounds of marijuana, because the police had a reasonable suspicion of
additional criminal activity before concluding the initial investigation. Id. at 361–
62. “Reasonable suspicion” is an objective standard, and “exists if the officer has
specific, articulable facts that, when combined with rational inferences from those
15 facts, would lead him to reasonably conclude that a particular person actually is, has
been, or soon will be engaged in criminal activity.” Ford v. State, 158 S.W.3d 488,
492 (Tex. Crim. App. 2005). “[T]he ultimate touchstone of the Fourth Amendment
is ‘reasonableness.’” Riley v. Cal., 573 U.S. 373, 382 (2014) (quoting Brigham City
v. Stuart, 547 U.S. 398, 403 (2006)). Perfection, however, is not required. See Heien
v. N.C., 574 U.S. 54, 60–61 (2014).
Before Granger placed Castillo back in his truck, Granger knew that Castillo
had consumed alcohol, not only because Granger smelled alcohol on Castillo, but
because when Granger asked, Castillo admitted to drinking “three beers.” Granger
also knew because Castillo admitted it, that Castillo had fired gunshots from the
vehicle. While looking in the cab of the truck, Granger saw the sod trapped in the
door frame, and stated “looks like he went off the damn roadway.” Wappler’s 9-1-1
call also alerted officers that Castillo was “goin’ real fast” and “went off the road”
at “Dead Man’s Curve.” In other words, before Granger returned Castillo’s driver’s
license to him and directed him to return to his truck, Granger knew Castillo had
consumed alcohol, fired a weapon, and driven fast enough to cause his vehicle to
briefly leave the roadway. Since a reasonable sober person would neither shoot a
weapon from a moving vehicle nor fail to maintain control of his vehicle, Granger
had a reasonable, articulable suspicion that Castillo’s alcohol consumption had
deprived Castillo of “the normal use of his mental or physical faculties[.]” Tex. Penal
16 Code Ann. § 49.01(2)(A). Therefore, although Granger prolonged the stop to
investigate Castillo’s possible intoxication, Granger did not do so unreasonably. See
Navarette v. Cal., 572 U.S. 393, 401–02 (2014) (holding that the totality of the
circumstances supported the investigation because a reasonable police officer would
have had a reasonable suspicion of drunk driving); see also Pack, 612 F.3d at 362
(permitting additional investigation when additional reasonable suspicion develops
during the traffic stop). The totality of the information available to Granger
supported a reasonable suspicion that Castillo was intoxicated, and, therefore,
justified prolonging the stop to investigate that suspicion.
Although Navarette turned on whether information provided by a 9-1-1 caller
may justify an investigative traffic stop, which is not an issue in this case, the opinion
lists several types of erratic driving, including ‘“driving in the median,”’ that are
“strongly correlated with drunk driving.” Navarette v. Cal., 572 U.S. at 402; see also
Leming v. State, 493 S.W.3d 552, 563–65 (Tex. Crim. App. 2016) (law enforcement
possessed information that the defendant’s erratic driving was consistent with
intoxication, so the investigative stop did not violate the Fourth Amendment).
Castillo also posits that since Granger did not appreciate the significance of
the DWI indications until after Granger decided to “cut him loose,” Granger’s
further investigation was unconstitutional. Granger’s subjective intent, however, is
not relevant to the disposition of this matter. See Furr v. State, 499 S.W.3d 872, 878
17 (Tex. Crim. App. 2016). Instead, “we look to the totality of the circumstances,
including the cumulative information known to cooperating officers at the time of
the detention.” Id. (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
App. 2011)). The responding officers, including Granger, possessed “specific,
articulable facts that, when combined with rational inferences from those facts,
would lead [officers] to reasonably conclude that the person detained is, has been,
or soon will be engaged in criminal activity.” Furr, 499 S.W.3d at 878 (citing Wade
v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013)).
Since Granger possessed information that would create a reasonable,
articulable suspicion that Castillo was intoxicated, he did not violate the Fourth
Amendment by taking the time needed to investigate that possibility. The trial court,
therefore, correctly denied Castillo’s motion to suppress the evidence thus obtained,
and did not err in admitting the evidence during trial. We overrule Castillo’s first
and second issues.
Issue Three: Speculation
Granger testified Castillo said words to the effect, “I’m screwed no matter
what[,]” during the stop. The following exchange then took place:
[The State]: Why would someone usually use that terminology when it comes to that?
[Defense Counsel]: Objection, speculation.
The Court: If he knows, he knows. I’ll overrule. 18 [Granger]: If someone says that, the way I take it is they’re guilty of something. They know they screwed up.
[The State]: But not even let’s throw the word “guilty” out of it. Just it doesn’t matter what choice they go, they’re in a bad spot?
[Granger]: Correct.
[The State]: And even throughout the video on the way back, they continue to say – the defendant continues to say, “I screwed up. I’m screwed”?
[Granger]: Yeah. He was, I think, concerned about his job at the time, contacting his boss.
On appeal, Castillo contends that the trial court reversibly erred by permitting
Granger “to speculate as to why appellant would have remarked regarding his
predicament.” Citing Texas Rule of Evidence 701, the State responds that the trial
court “properly overruled Appellant’s objection to speculation, because Officer
Granger was entitled to provide the jury his opinion and inferences based on his own
personal experiences that are relevant to the case[.]”
A trial court’s admission or exclusion of evidence is reviewed on appeal for
abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
“The trial court abuses its discretion when it acts without reference to any guiding
rules and principles or acts arbitrarily or unreasonably.” Rhomer v. State, 569
S.W.3d 664, 669 (Tex. Crim. App. 2019). We overturn a trial court’s ruling on the
admission or exclusion of evidence only when the ruling is so clearly wrong that it
lies outside the zone of reasonable disagreement. See Taylor v. State, 268 S.W.3d
19 571, 579 (Tex. Crim. App. 2008). If the trial court’s evidentiary ruling is correct on
any theory of law applicable to the case, that ruling will not be disturbed even if the
trial judge gave the wrong reason for the correct ruling. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
Texas Rules of Evidence 602 and Rule 701 apply when a party objects that
the testimony sought is speculative. See Tex. R. Evid. 602, 701; Solomon v. State,
49 S.W.3d 356, 364–65 (Tex. Crim. App. 2001); Turro v. State, 950 S.W.2d 390,
403 (Tex. App.—Fort Worth 1997, pet. ref’d). Rule 602 requires that a witness have
personal knowledge of the matter on which he or she is testifying. Tex. R. Evid. 602.
Rule 701 allows a lay witness to express an opinion when the opinion is rationally
based on the witness’s perception and is helpful to the jury’s understanding of the
witness’s testimony or to the jury’s determination of a fact at issue in the case. See
id. 701; Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002).
The first prong of Rule 701 requires a witness to rationally base his or her
testimony on what he or she perceives. See Tex. R. Evid. 602, 701; Solomon, 49
S.W.3d at 364–65; Fairow v. State, 943 S.W.2d 895, 897 (Tex. Crim. App. 1997).
The personal knowledge of the events forming the basis of the witness’s opinion
may come directly from what the witness sees, hears, or smells, or otherwise from
the witness’s experience. Osbourn, 92 S.W.3d at 535; Fairow, 943 S.W.2d at 898.
An opinion is rationally based on a witness’s perception if the opinion is one a
20 reasonable person could have drawn under the circumstances. Fairow, 943 S.W.2d
at 900. The second prong of Rule 701 requires that the witness’s opinion be helpful
to the trier of fact. See Tex. R. Evid. 602, 701; Solomon, 49 S.W.3d at 364–65. There
is no “bright line” test indicating when an opinion is helpful. Fairow, 943 S.W.2d at
900. “This consideration is especially prudent when the opinion concerns culpable
mental state.” Id.
The trial court could have reasonably concluded that Granger had personal
knowledge of the event upon which he based his opinion, since Granger was
interacting with Castillo when Castillo made the allegedly incriminating statement.
See id. at 898–99; see also Tex. R. Evid. 701. The trial court also may have
reasonably concluded that a reasonable person could interpret this statement as
Granger did: that Castillo knew he “screwed up[,]” especially considering that
Castillo made the statement while handcuffed and sitting in the back seat of a police
car. See Fairow, 943 S.W.2d at 900.
Because Granger’s conclusion was rationally based on his perception and
experience, it was not improper for him to testify how he interpreted Castillo’s
statement, so long as Granger’s interpretation was helpful to the jury. See Tex. R.
Evid. 602, 701; Solomon, 49 S.W.3d at 364; Fairow, 943 S.W.2d at 898-99.
Testimony is helpful when it either helps the jury understand the witness’s testimony
or determine a fact in issue. Fairow, 943 S.W.2d at 900. The trial court may have
21 reasonably concluded Granger’s opinion offered insight into Castillo’s state of mind
which would be helpful to the jury in determining Castillo’s guilt. “A consciousness
of guilt is perhaps one of the strongest kinds of evidence of guilt.” Harris v. State,
645 S.W.2d 447, 456 (Tex. Crim. App. 1983) (internal quotation marks omitted)
(citing 2 Ray, Texas Evidence 1538 (3rd ed. 1980)). Because the trial court’s ruling
was within the zone of reasonable disagreement, we cannot conclude that the trial
court abused its discretion in allowing this testimony, and we overrule Castillo’s
third issue.
Issues Four and Five: Extraneous Offense Evidence and Motion for Mistrial
Granger’s body camera footage depicts Castillo admitting that he was charged
with possession of drug paraphernalia about ten years previously and Granger later
asking Castillo “as far as being in trouble before, it was just for the marijuana, right?”
Castillo then replies “yes.” The trial court directed the State to edit such statements
from the exhibit before showing the body camera video to the jury and the State
agreed to do so. Nevertheless, the video contained these statements when played for
the jury. Although the trial court instructed the jury not to consider that portion of
the video, Castillo’s motion for mistrial was denied.
Evidence of Castillo’s extraneous offense was inadmissible, and the State
does not contend otherwise. Tex. R. Evid. 404(b); see Valadez v. State, 663 S.W.3d
22 133, 141 (Tex. Crim. App. 2022). Instead, the State responds that the trial court cured
this error with its instruction to disregard, and the error, therefore, was harmless.
As with admissibility questions, we review a motion for mistrial for an abuse
of discretion. See Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim. App. 2016).
The trial court’s ruling must be upheld if it was within the zone of reasonable
disagreement. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). “A
mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that
expenditure of further time and expense would be wasteful and futile.’” Hawkins v.
State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (internal quotations omitted). ‘“It
is well established that a jury instruction to disregard a statement or remark will
ordinarily cure the error[.]”’ Redd v. State, 578 S.W.2d 129, 130 (Tex. Crim. App.
1979) (quoting Watson v. State, 532 S.W.2d 619, 624 (Tex. Crim. App. 1976)); see
also Adams v. State, 156 S.W.3d 152, 157 (Tex. App.—Beaumont 2005, no pet.).
“Only in extreme circumstances, where the prejudice is incurable, will a mistrial be
required.” Hawkins, 135 S.W.3d at 77 (citing Simpson v. State, 119 S.W.3d 262, 272
(Tex. Crim. App. 2003)).
The body camera video played for the jury was fifty-two minutes long. Of
those fifty-two minutes, perhaps ten seconds referenced Castillo’s previous criminal
charge. The remainder of the video showed Castillo interacting with Granger, and
by Granger’s own testimony, Castillo was not stumbling or slurring his words and
23 committed no traffic infraction in Granger’s presence. As in Adams, these
circumstances are not sufficiently extreme to render any prejudice incurable and
warrant a mistrial. See Adams, 156 S.W.3d at 157.
In Adams, a D.W.I. case, a witness inadvertently mentioned information that
the trial court previously ruled inadmissible. Id. at 157. The trial court instructed the
jury to disregard the inadmissible matter but denied the defendant’s motion for
mistrial. Id. On appeal, we determined that “the State’s question, and the officer’s
response that the reading was over .08 were not so inflammatory that they could not
be cured by an instruction to disregard.” Id. at 158. In reaching that conclusion, we
followed our sister court’s approach in Roberson v. State, 100 S.W.3d 36, 41 (Tex.
App.—Waco 2002, pet. ref’d) which gauged the effectiveness of an instruction to
disregard by using the following criteria: ‘“the nature of the [improper comment];
the persistence of the prosecutor; the flagrancy of the violation; the particular
instruction given; the weight of the incriminating evidence; and the harm to the
accused as measured by the severity of the sentence.”’ Id.
Applying these criteria to the instant case, we believe that the trial court’s
instruction to disregard was effective to cure the error. Not only was the failure to
remove the inadmissible extraneous offense information inadvertent, but also the
State did not mention it either before or after playing the video for the jury. In
addition, the trial court’s instruction was “pointed, clear, and definitive: the trial
24 judge expressly stated the [] jury was not to consider [the inadmissible evidence].”
Adams, 156 S.W.3d at 157. “Finally, given the statutory punishment for a class B
D.W.I. misdemeanor, [Castillo’s] sentence was not severe. [] The trial court,
pursuant to statutory authority, suspended the imposition of the sentence and placed
[Castillo] on community supervision.” Id. at 158; see Tex. Penal Code Ann.
49.04(b); Tex. Code Crim. Proc. Ann. art. 42A.051. Given the similarities between
Adams and this case, we conclude that we should reach the same result: that the trial
court’s instruction cured the error. We conclude the trial court acted within its
discretion when it denied Castillo’s motion for mistrial, and we overrule his fourth
and fifth appellate issues.
Issue Six: Jury instructions
Castillo’s final issue argues that the trial court should have instructed the jury
to disregard certain evidence if it found that the challenged evidence was illegally
obtained. See Tex. Code Crim. Proc. Ann. art. 38.23(a). There are three predicates
required for a defendant to be entitled to an article 38.23 jury instruction: “(1) the
evidence heard by the jury must raise an issue of fact, (2) the evidence on that fact
must be affirmatively contested, and (3) the contested factual issue must be material
to the lawfulness of the challenged conduct.” See Hamal v. State, 390 S.W.3d 302,
306 (Tex. Crim. App. 2012). Castillo, therefore, needed to affirmatively contest or
raise a “disputed fact issue” warranting the instructions he sought. Id. at 306–07
25 (discussing what is required to establish a “disputed fact issue” in the context of
being entitled to a requested article 38.23 jury instruction). In this case, as in Hamal,
there is no factual dispute about what information Granger and his fellow officers
received before and during the traffic stop. Id. at 307. The dispute instead hinges on
the legal effect of that information, which is not properly submitted to the jury. See
Madden v. State, 242 S.W.3d 504, 510–11 (Tex. Crim. App. 2007). Since Castillo’s
requested jury instructions address such matters as “the legality of the extension of
the stop,” “that the evidence was obtained in violation of the provisions of this
statute[,]” and “[a] proper chain of custody exists for the blood sample[.]” The trial
court properly refused these requested jury instructions for the reasons set forth in
Madden: “The jury [] is not an expert on legal terms of art or the vagaries of the
Fourth Amendment. It cannot be expected to decide whether the totality of certain
facts do or do not constitute ‘reasonable suspicion’ [of intoxication] under the law.”
Id. at 511. The jury likewise cannot be expected to determine the rest of Castillo’s
contested legal issues, such as whether the traffic stop was unreasonably prolonged
or whether the evidence was illegally obtained or improperly handled. See id.
Since Castillo’s requested jury instructions addressed legal issues, rather than
factual disputes, we overrule his sixth issue.
26 CONCLUSION
Having overruled all Castillo’s issues, we affirm the trial court’s judgment.
AFFIRMED.
KENT CHAMBERS Justice
Submitted on June 25, 2025 Opinion Delivered October 29, 2025 Do Not Publish
Before Golemon, C.J., Wright and Chambers, JJ.